Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Wednesday, September 23, 2015

Deitch on jail safety, oversight

Michele Deitch, a lecturer at the LBJ School of Public Affairs and long-time observer and participant in Texas criminal justice politics, spoke at yesterday's Senate Criminal Justice Committee hearing on jail safety, mental health treatment, and suicide prevention. But Grits would have liked to hear her expand on the themes she quickly rattled off to the committee, so I asked Michele if I could reprint her full written testimony. She graciously assented, so find it published in full below the jump.

Written Testimony on

Jail Safety Issues

Michele Deitch, J.D., M.Sc.

Senior Lecturer

Lyndon B. Johnson School of Public
Affairs and The School of Law

The University of Texas at Austin

Senate Criminal Justice Committee

September 22, 2015

Chairman Whitmire and Committee Members,

Thank you
for the opportunity to testify before you today regarding issues related to
jail safety issues in Texas.

By way of
background, I am a Senior Lecturer at the University of Texas with a joint
appointment in the LBJ School of Public Affairs and the School of Law.I am an attorney by training, and I have
spent my 29-year career working on issues related to prisons and jails.Among my professional experiences, I have
served as a federal court-appointed monitor of conditions in the Texas prison
system; have been a consultant to a number of jail systems around the country
on issues related to inmate safety; was the drafter of the American Bar
Association’s Standards on the Treatment of Prisoners; have been an expert witness
and consultant in three lawsuits involving deaths in custody in county jails;
worked with the Commission on Jail Standards on a study involving conditions in
Texas county jails; and worked with the Office of the Independent Ombudsman on
a study of violence in the Texas Juvenile Justice Department.I also currently serve as the Co-Chair of the
American Bar Association’s Subcommittee on Independent Correctional Oversight,
an issue on which I have done extensive research and writing.

My
testimony today draws upon those professional experiences and my familiarity
with national best practices regarding jail operations and inmate safety.In particular, I will focus on issues related
to the identification and management of inmates with mental illness and those who
may be at risk for suicide; on the need for more robust jail standards in
Texas; and on the need for additional jail oversight.

Best Practices
Regarding Mental Illness and Suicide Prevention in Jails

Jails have
become the largest provider of mental health services in this country.Research shows that 64 percent of local jail
inmates have symptoms of serious mental illness.[1]The lack of readily available and affordable
mental health services in the community contributes to the over-representation
of these persons in the jail population.Inmates with behavioral health issues are especially vulnerable to
physical and sexual abuse in the jail setting, are more likely to attempt
suicide, and are less able to conform their behavior to the jail’s rules, which
results in an increased likelihood of disciplinary action taken against
them.For these reasons, this is a
difficult population for jail staff to manage, and yet jails tend to have
limited mental health resources to serve this population.Thus, this is an ideal target population to
divert from the jails, especially when the underlying offense is extremely
minor.

Jails have
a constitutional obligation to protect inmates with mental illness or suicidal
tendencies, by identifying them and providing them with appropriate treatment
and housing placements.Failure to
protect them or provide them with services can subject the jail and the county
to lawsuits that seek substantial damages as well as injunctive relief.Thus, it is critical that every jail have in
place an appropriate and effective mental health plan and suicide prevention
plan.

The jail
intake process is a fundamental part of those plans, yet this aspect of jail
operations often tends to be problematic.In particular, the intake screening form needs to include questions that
identify an arrestee’s urgent medical needs, including any chronic health or
mental health issues, any suicidal thoughts or prior suicide attempts, any
medications, and whether they are currently intoxicated by drugs or alcohol.In order to ensure a seamless health
transition from the streets, efforts also must be made to obtain and provide any
medications that the arrestee has been prescribed, so that there is no
discontinuity in treatment.

The
standards of the National Commission on Correctional Health Care, the leading
association with specific expertise on these issues, indicate that the person
who administers the screening questionnaire should be a health care
professional.[2]The reason for this requirement is
two-fold:first, a health care
professional is better able to assess the urgency of the medical needs
presented by the arrestee, and second, an arrestee may be more likely to
provide accurate information about sensitive health needs to a nurse rather
than a law enforcement representative.In those jails that do not have a health care professional on duty, the
standards require that the custodial officer who conducts the screening be
someone with supplemental training beyond that provided to other custodial
staff.This same requirement is found in
the standards of the American Bar Association[3]
and the American Correctional Association.[4]However, the minimum standards of the Texas
Commission on Jail Standards are much weaker than this, saying nothing about
the need to have a health care professional complete the screening form and
requiring only that the person completing the form have “supplemental training”
(the amount of such training is left unspecified).[5]

In Texas,
only 11 percent of jails have a mental health professional assigned to the
facility.[6]Thus, there is a real need for jails to have
clearly written arrangements with local mental health facilities to provide
emergency mental health care as well as routine treatment services.

Training of
all custodial staff on mental health and suicide prevention issues is
essential.Best practices suggest that
staff should have at least eight hours of initial suicide prevention training,
with two hours of follow-up training annually.[7]The Texas Minimum Jail Standards do not
require this level of training.

A positive
answer to any of the questions on the screening form about mental illness or
suicidal tendencies should trigger an immediate referral to and prompt
assessment by a mental health professional, and placement of the inmate in a
safe setting pending assessment.That mental
health professional should direct the appropriate intervention and treatment,
help determine the risk presented by the inmate, and assure follow-up as
needed.The involvement of this mental
health professional is essential for proper classification of the inmate for
purposes of housing placement, level of supervision, and treatment
programming.In Texas, there is a
statutory requirement that the magistrate be contacted when mental illness is
suspected so that a formal mental health evaluation by an outside agency can be
ordered, but that should not be a substitute for a prompt assessment by a
mental health staff member located at the jail or on contract with the jail.

Inmates should be assessed as “acutely
suicidal” (if they are actively threatening suicide or engaging in self-harm)
or “nonacutely suicidal” (if they have a prior history of suicide attempts or
express current suicidal ideation).This status determines whether the inmate should be subject to constant
observation (with checks no more than every five minutes) or frequent
observations (with checks on a staggered basis with intervals not to exceed
10-15 minutes). Notably, the Texas
Minimum Jail Standards do not address this need to categorize suicidal inmates
by this degree of risk, and require only 30-minute checks for inmates who are
potentially suicidal.[8]This time frame is inadequate to protect
inmate safety, as suicide attempts and deaths can occur well within a 30-minute
period.

It is
commonplace for jail staff to assign inmates at risk of suicide to housing in
an isolation cell.This is done for administrative
convenience, and presumably because these inmates are seen as vulnerable.However, research shows that such isolation
can actually exacerbate the trauma these inmates are experiencing and escalate
their suicidal feelings.[9]Also, it removes the inmate from proper staff
supervision. Instead of isolating
prisoners who are at risk of suicide, jail staff should seek to house them in
the general population in a multi-occupancy cell, mental health unit, or
medical infirmary, where they can be close to staff.[10]Removal of an inmate’s clothing, placement in
restraints, and placement in a rubberized suicide cell should be a last resort
for actively suicidal inmates until such time as they can be treated by a
mental health professional.[11][12]Research shows that inmates are more likely
to commit suicide when they are placed in isolation cells than when they are
housed in multi-occupancy cells.[13]Housing assignments should be made that
maximize the opportunity for staff and peer engagementand interaction with the inmate, not
simply impersonal staff checks.

Another
critical aspect of a suicide prevention plan involves the need for staff to
have suicide resistant cells that eliminate physical features that could
facilitate suicide attempts.For
example, these cells should avoid obvious protrusions that can be used to anchor
a device for hanging.Light fixtures
should be tamper-proof, and there should be nothing in the cell that can be
used as a tool for self-harm, including plastic garbage bags.Most importantly, there should be full
visibility into the cell, so staff can see the inmate at all times.Emergency equipment should also be readily
available.[14]

Additionally,
a jail’s suicide prevention plan should include a provision for a post-incident
review of not only completed suicides but also all serious suicide
attempts.This review should provide a
critical look at all circumstances surrounding the death or the attempted
suicide, and should examine any policies or practices that may need to be
changed as a result of the incident.

Finally,
the jail’s suicide plan should recognize and address the fact that suicides can
occur at any time during an inmate’s incarceration, not only upon admission,
and thus staff must always be alert to indications that an inmate is developing
mental health issues or suicidal ideation.Provisions should be made for referral to a mental health professional
at any point in time that seems necessary.

Of course,
there are many other elements of an effective jail suicide prevention plan, as
well as a great deal of research and legal requirements regarding the treatment
and management of inmates with mental illness.But the issues discussed above seem to be the source of many problems in
jail management that warrant attention by lawmakers and by the Commission on
Jail Standards.

Making Jail
Standards and Jail Oversight More Robust in Texas

The Texas Commission on Jail
Standards is one of the only independent government agencies in the United
States charged with conducting routine inspections of county jails and
regulating them.[15]Texas should be very proud to have this
agency, and the work of the Commission has gone a long way towards helping
professionalize the operations of jails and ensuring that they abide by a
minimum set of standards.I have had the
privilege of working closely with the Commission staff over many years in this
field and I think highly of their commitment to their mission.

There are a number of ways in which
the work of the Commission can be enhanced, however.First, the Commission’s staff is
under-resourced.There are currently
only four inspector positions for the entire state, and one of those slots is
currently vacant.The number of
personnel is insufficient to handle the inspection requirements for a state the
size of Texas.Effective oversight
requires frequent surprise inspections as well as follow-up inspections to
check on whether deficiencies have been remedied.The Legislature should provide the Commission
with additional resources in order to make their work more robust.

Second, the
Commission needs to develop standards on a number of important issues that are
currently unaddressed.For example, the
Texas Minimum Jail Standards are completely silent on issues related to staff
use of force and sexual assault.There
are numerous national standards that can be used as models for Texas, including
standards of the American Correctional Association and the American Bar
Association.The Commission should
incorporate the new U.S. Department of Justice’s Prison Rape Elimination Act
(PREA) Standards into its own standards, and should audit each county jail’s
compliance with those standards.This
would have the added benefit of saving each county the cost of paying for an
auditor every three years as required by federal law.

Third, the
Commission’s standards need to be more detailed, especially on issues related
to the health care, mental health, and suicide prevention plans.The standards say simply that the jail needs
to have approved plans in each of these areas, but does not provide guidance to
the county jailers who must develop the plans.Commissioners should look to the standards cited earlier in this
testimony for guidance on what provisions such standards should include.It is not enough to say that the plan should
include “provisions for adequate supervision of inmates” or “provide procedures
for referral for medical, mental, and dental services.”

Fourth,
there is no provision for the inspectors to assess the jail’s compliance with
its own plan.The best plan is the world
is no good unless it is followed.Yet
the inspectors are limited to ensuring that a plan exists, not that staff
actually follow through with its requirements.

Fifth, the
Commission should seek to develop performance-based standards, in much the same
way that the American Correctional Association has done in recent years.For example, the ACA auditing process
requires the collection of data about the number of inmate suicides in the past
12 months divided by the average daily population.Having annual suicide measurements like this
allow the inspectors and the jail leadership alike to assess the effectiveness
of the facility’s suicide prevention program.A more robust Commission would not simply ensure that jails have
approved plans in place, but would make sure that these plans are achieving
their goals of keeping inmates safe and providing them with constitutionally
required services and treatment.

Sixth, there needs to be increased attention paid to smaller jails in
Texas.For obvious and appropriate
reasons, disproportionate attention gets paid to the large urban jails — especially
those in Harris, Dallas and Bexar counties — simply because of their size and
the huge number of inmates who pass through the doors of those
facilities. But nearly half of the state’s jails hold fewer than 50
inmates. Those smaller jails, which are typically lacking in mental health
resources, have substantially higher rates of inmate suicide than the larger
facilities. Moreover, municipal
jails operated by cities or police departments have surprisingly high numbers
of suicides, and are completely unregulated by the Commission on Jail
Standards. This lack of oversight needs to be addressed:municipal jails should be brought under the
Commission’s mandate.

Finally, Texas needs an oversight mechanism
that is focused on the treatment of prisoners and the investigation of inmate
complaints. This is not the role of the Commission on Jail Standards,
which primarily looks at environmental factors in jails and does not do
individual investigations. Inspectors are charged with evaluating jails’
compliance with specific technical standards, not assessing inmate treatment or
the dynamics between staff and inmates.

The
Legislature should consider creating an entity modeled on the Independent
Ombudsman for the Texas Juvenile Justice Department, an office created by the
Legislature in the wake of the mistreatment of youth in custody in 2007.[16]
That office has had remarkable success in identifying problems in Texas’
juvenile facilities and providing a way for youth and their families to seek
assistance for their concerns. An
equivalent office should be set up to go into Texas’ jails, meet with inmates,
write reports and identify systemic issues that cut across all jail facilities
around the state. The Jails Ombudsman could even be a branch of the
Commission on Jail Standards.This
approach would provide for two extremely important and complementary types of
oversight to take place in Texas, one that is more regulatory in nature and
focused on jail management, and the other more holistic and focused on the
treatment and safety of inmates.

I
appreciate this Committee’s time and interest in examining and addressing the
ongoing problems of mental health care and suicide prevention in Texas’s
jails.I believe that great strides can
be made towards protecting the rights and safety of inmates through more robust
jail standards that address the specific issues discussed in my testimony, as
well as by enhancing the oversight role of the Commission on Jail Standards and
by developing an office of the Jails Ombudsman.I stand ready to assist this Committee and the Commission on Jail
Standards in any way that might be helpful.

"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Conroe

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"

- Rob Patterson, The Austin Post"Scott Henson's 'Grits for Breakfast' is one of the most insightful blogs on criminal justice issues in Texas."

- Texas Public Policy Foundation

"Nobody does it better or works harder getting it right"

David Jennings, aka "Big Jolly"

"I appreciate the fact that you obviously try to see both sides of an issue, regardless of which side you end up supporting."

Kim Vickers,Texas Commission on Law Enforcement Officer Standards and EducationGrits for Breakfast "has probably broken more criminal justice stories than any TX reporter, but stays under the radar. Fascinating guy."

Maurice Chammah,The Marshall Project"unrestrained and uneducated"

John Bradley,Former Williamson County District Attorney, now former Attorney General of Palau

"our favorite blog"

- Texas District and County Attorneys Association Twitter feed"Scott Henson ... writes his terrific blog Grits for Breakfast from an outhouse in Texas."